Wednesday, June 22, 2011

The NCAA, Wal-Mart, and Fourth-Grade Inferences

I suspect that Brian Cook wasn't intending to provide commentary on Wal-Mart v. Dukes when he wrote about the NCAA's new stance of making inferences of violations, but the following paragraph from MGoBlog's piece on Oregon overpaying for scouting reports is actually very timely in Supreme Court world:

The question the NCAA is going to have to answer soon is "how obviously fishy does something have to be before we punish someone?" Each of the three items above falls at a different place on the you-expect-me-to-believe-that scale:

Actual car purchases by Ohio State people checked out by governmental organization: not that fishy in and of itself. Add the loaners and the memorabilia and the cuddly relationship and there's still a cocktail of NCAA violations, but the actual sale of vehicles that were apparently sold for book value or above in most cases is plausibly on the up and up. The sheer concentration of sales and murky value of used cars makes it unlikely there wasn't some extra benefits going on, but proving that seems required if that particular slice of the Ohio State issues is going to produce anything.

Greg Little's ever-rotating license plate from guy serving time for money-laundering: there might be some level of plate and car swapping that is reasonably explained. Little clearly exceeds that and is hooked up with a guy who was in some dirt. Other schools monitor traffic/parking infractions closely; if UNC did so they would have ended up suspending Little a lot sooner. This should be the ground for a failure to monitor charge, one that will be part of a more general hammering for John Blake's clear knowledge of Marvin Austin, et al., and their magic carpet rides.

Oregon paying 25k for perfectly useless paper: if you had purchased a $25,000 vehicle and found out it was in fact a rabbit, you would get your money back. You would instruct your credit card company not to honor the charge or sue or something. You would not go on your way, maintaining a positive relationship with the man who sold you a rabbit he told you was an Escalade. This is fishiness that should rise to the level of a major NCAA violation in and of itself, a clear quid-pro-quo with no plausible explanation.

The NCAA dared to make inferences in the USC case, something that forms the basis for much of the Trojan outrage surrounding the case. They made a leap of logic many fourth-graders could make. Oregon obviously fails the fourth-grader test. North Carolina likely does. In this instance, Ohio State does not; with the loaners they do.

Brian's analysis is timely because the Supreme Court just grappled with a similar question, namely whether statistical and anecdotal evidence can be used to certify a class of discrimination plaintiffs. Writing for the majority, Justice Scalia rejected the attempts to certify an enormous class of current and former female Wal-Mart employees. Here is the money paragraph of Dahlia Lithwick's criticism of the decision:

As the Lily Ledbetter case showed, the court's devotees of strict construction and plain meaning are so enamored of the printed word that they often seem inclined to accept no other type of evidence of pay discrimination. Just as Ledbetter never received an embossed letter from Goodyear indicating that she was being systematically underpaid, so, too, the hundreds of women with claims about sex discrimination at the hands of Wal-Mart must be wrong: After all, the company's announced policy forbids it, and the perpetrators of the discrimination don't often admit to doing it. The whole purpose of this type of class action civil rights suit is to smoke out unwritten policies and unspoken bias. The women of Wal-Mart will now have to sue as individuals, or in smaller classes, or by way of the Equal Employment Opportunity Commission. Most of them will not be able to afford to litigate it alone, and some of them will be unable to prove it alone. Allowing women in this situation some effective means of justice is one of the rationales of class action litigation.

The federal courts and the NCAA face similar problems in addressing what to do when they see smoke, but no fire. In the Wal-Mart case, the plaintiffs sought to rely on an analysis of statistical evidence that concluded that "Wal-Mart paid men more than women, promoted males over females, and did so in numbers that could not be readily explained away." According to the plaintiffs, the aggregate numbers, along with the anecdotal evidence that they compiled, showed that Wal-Mart must be discriminating against women as a class. Scalia rejected this argument, noting that Wal-Mart devolves authority to make employment decisions to local managers, so the plaintiffs cannot certify a class when they are complaining about thousands of discrete decisions that were not made under a common policy or scheme. This is a fascinating question for which there are no easy answers, hence the fact that it ended up as a 5-4 decision at the Supreme Court.

The NCAA is faced with a similar dilemma. In the Oregon case, the Ducks paid Willie Lyles $25,000 for a report on recruits who had already matriculated at various schools. The payment was obviously not for the report, unless you accept the notion that Oregon coaches are permitted to waste Phil Knight's millions with impunity. That seems like a reasonable inference, but then the question becomes "OK, so what was Oregon buying with the $25K?" A generally favorable relationship with Lyles? A quid pro quo that he would whisper in the ears of recruits "Eugene is great!" Was he a pass-through for money to the recruits (or, unless Lyles and Oregon were buffoons, relatives of the recruits)?

It's no accident that the Supreme Court broke down on ideological lines in the Wal-Mart case. The conservative bloc of the court (Scalia, Alito, Roberts, and Thomas) sided with business; the liberal bloc (Kagan, Sotomayor, Ginsburg, and Breye) sided with employees; and Justice Kennedy cast the deciding vote, in this case for tightening the rules on class certification in the discrimination context. For me, the interesting question facing the NCAA is what its preference is with respect to rules violations? Does it come at North Carolina, Ohio State, and Oregon with a mindset of "we are tired of bad press and we are going to throw the book at these schools to get everyone else back in line?" Or does it come in with the mindset of "because there is so much money at stake, we need to see fire before we throw the book at these schools." The verdict in the USC case indicates that the NCAA is taking the former approach, but was that motivated by a general sense that a crackdown on violations is needed or was the NCAA just furious at USC specifically for the school (and Mike Garrett, in particular) thumbing its nose at the investigation? And, like the Supreme Court, are there factions at the NCAA pushing in different directions?

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